Gabriel Mendez v. Michael J Astrue, No. 5:2009cv00969 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman: The decision of the Social Security Commissioner is reversed and the matter is remanded for further proceedings. (See document for further details.) (rla)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 GABRIEL MENDEZ, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 19 Plaintiff Gabriel ) ) ) ) ) ) ) ) ) ) ) ) ) Mendez Case No. EDCV 09-00969-MLG MEMORANDUM OPINION AND ORDER ( Plaintiff ) seeks review of the 20 Commissioner s final decision denying his application for Supplemental 21 Security Income ( SSI ) pursuant to Title XVI of the Social Security 22 Act. For the reasons stated below, the decision of the Social Security 23 Commissioner 24 proceedings. is reversed and the matter is remanded for further 25 26 I. Factual and Procedural Background 27 Plaintiff was born on July 29, 1986. (Administrative Record ( AR ) 28 at 14). He has a high school education and relevant work experience as 1 a retail clerk. (AR at 13-14). 2 Plaintiff filed an application for SSI on November 15, 2005, 3 alleging that he has been disabled since July 29, 1986, due to a 4 learning disability, depression, and a lack of motivation. (AR at 70-75, 5 109, 6 application at the initial and reconsideration levels. (AR at 27-31, 35- 7 39). 162). The Social Security Administration denied Plaintiff s 8 A de novo hearing was held before Administrative Law Judge Thomas 9 P. Tielens (the ALJ ) on November 6, 2008. (AR at 20-56). Plaintiff did 10 not appear at the hearing, as he was in jail. (AR at 19). Plaintiff s 11 counsel 12 vocational expert testified at the hearing. (AR at 22-23). On February 13 4, 2009, the ALJ issued a decision denying Plaintiff s application for 14 SSI. (AR at 9-19). The ALJ found that Plaintiff: (1) has not engaged in 15 substantial gainful activity since the date of his application, November 16 15, 2005 (step 1); (2) suffers from the severe impairments of organic 17 mental disorder, anxiety related disorder, and substance addiction 18 disorder (step 2); (3) does not have any impairments that meet or equal 19 the criteria of Listings 12.02, 12.06, or 12.09 (step 3); (4) has the 20 residual functional capacity ( RFC ) to perform a full range of work at 21 all exertional levels, but is restricted to simple, repetitive tasks 22 with limited public interaction; (5) is unable to perform his past 23 relevant work; but (6) is capable of performing other work that exists 24 in significant numbers in the economy. (AR at 9-10, 14-15). The Appeals 25 Council denied review on March 16, 2009. (AR at 1-3). submitted Plaintiff s case on the record. (AR at 20). A 26 Plaintiff commenced this action for judicial review on May 28, 27 2009. On December 4, 2009, the parties filed a Joint Stipulation of 28 disputed issues. Plaintiff contends that the ALJ failed to: (1) properly 2 1 consider the treating psychologist s opinion; (2) properly consider the 2 examining 3 condition met or medically equaled Listing 12.05; (4) properly consider 4 lay 5 clinician s opinion. Plaintiff seeks remand for payment of benefits or, 6 in the alternative, remand for further administrative proceedings. 7 (Joint Stipulation at 22). The Commissioner requests that the ALJ s 8 decision 9 Stipulation has been taken under submission without oral argument. psychologist s witness statements; be affirmed. opinion; and (3) (5) (Joint determine properly that consider Stipulation at Plaintiff s the 22-23). treating The Joint 10 11 12 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 13 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 14 findings and decision should be upheld if they are free from legal error 15 and are supported by substantial evidence based on the record as a 16 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 17 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 18 evidence means such evidence as a reasonable person might accept as 19 adequate 20 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 21 than a scintilla, but less than a preponderance. Lingenfelter v. Astrue, 22 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 23 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial 24 evidence supports a finding, the reviewing court must review the 25 administrative record as a whole, weighing both the evidence that 26 supports 27 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 28 the evidence can reasonably support either affirming or reversing, the to and support the a conclusion. evidence that Richardson, detracts 3 from 402 the U.S. at 401; Commissioner s 1 reviewing court may not substitute its judgment for that of the 2 Commissioner. Id. at 720-721. 3 4 III. 5 DISCUSSION A. 6 A Remand Is Appropriate Due to the ALJ s Failure to Properly Evaluate the Opinions of the Examining Psychologists 7 In the decision, the ALJ found that Plaintiff s impairments did not 8 meet or medically equal the criteria of Listings 12.02, 12.06, or 12.09. 9 (AR at 9). Plaintiff contends that the ALJ erred by failing to find that 10 he met the requirements of Listing 12.05, for mental retardation. (Joint 11 Stipulation at 10-13, 15-16). For the reasons discussed below this Court 12 concludes that a remand for further proceedings is appropriate. 13 If a claimant has an impairment or combination of impairments that 14 meets or equals a condition outlined in the Listing of Impairments, 15 then the claimant is presumed disabled at step three, and the ALJ need 16 not make any specific finding as to his or her ability to perform past 17 relevant work or any other jobs. Lewis v. Apfel, 236 F.3d 503, 512 (9th 18 Cir. 2001) (citing 20 C.F.R. § 404.1520(d)). An ALJ must evaluate the 19 relevant evidence before concluding that a claimant s impairments do not 20 meet 21 claimant s impairment does not satisfy the Listings is insufficient. See 22 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (holding that ALJ 23 erred by failing to consider evidence of equivalence). or equal a listed impairment. A boilerplate finding that a 24 An impairment matches a listing if it meets all of the specified 25 medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see 26 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1990); see also 20 27 C.F.R. § 404.1525(d). To be considered disabled under Listing 12.05, a 28 claimant must show the following: 4 1 Mental Retardation: Mental retardation refers to 2 significantly 3 functioning with deficits in adaptive functioning 4 initially 5 period; i.e., the evidence demonstrates or supports 6 onset of the impairment before age 22. 7 The required level of severity for this disorder is 8 met when the requirements in A, B, C, or D are 9 satisfied. subaverage manifested general during the intellectual developmental 10 .... 11 B. A valid verbal, performance, or full scale IQ of 12 59 or less; 13 Or 14 C. A valid verbal, performance, or full scale IQ of 15 60 16 impairment imposing an additional and significant 17 work-related limitation of function; . . . . 18 through 70 and a physical or other mental 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. 19 Plaintiff contends that he satisfies the requirements of both 20 12.05B and 12.05C. (Joint Stipulation at 10-13, 15-16). Plaintiff claims 21 he meets the requirements of Listing 12.05B because the medical evidence 22 established that he had a full scale IQ of 48, a verbal IQ of 50 and a 23 performance IQ of 53. (Joint Stipulation at 11-12; AR at 235); 20 C.F.R. 24 Part 404, Subpt. P, App. 1 § 12.05B). Plaintiff asserts that he 25 satisfies the requirements of 12.05C, because his full scale IQ is below 26 70, and he has additional severe impairments as determined by the ALJ, 27 including an organic mental disorder, an anxiety related disorder and a 28 substance addiction disorder. (Joint Stipulation at 12, 15; AR at 9, 5 1 235, 315). In support of his step three claim, Plaintiff cites the 2 opinions of two examining psychologists, Edward B. Pflaumer, Ph.D. and 3 Adam Cash, Psy.D. (AR at 234-36, 313-17). 4 In September 2000, Plaintiff underwent a psychological assessment 5 by Dr. Pflaumer. (AR at 234-36). Plaintiff, who was 14 years old at the 6 time, was diagnosed Plaintiff with mild mental retardation, as well as 7 ADHD, 8 Intelligence Scale for Children-III ( WISC-III ), Dr. Pflaumer reported 9 that Plaintiff tested at a verbal IQ of 50, a performance IQ of 53, and 10 a full scale IQ of 48. (AR 235). Dr. Pflaumer noted, however, that 11 Plaintiff s WISC-III scores could more realistically be 50-52 to 12 compensate for factors such as impulsiveness or giving up too quickly. 13 (AR at 235). Dr. Pflaumer opined that Plaintiff s social and emotional 14 problems interfered with his ability to participate in school and would 15 interfere with his ability to work if they persisted. (AR at 235). by report. (AR at 236). After administering the Wechsler 16 In March 2006, clinical psychologist, Adam Cash, Psy.D., conducted 17 a psychological evaluation of Plaintiff at the request of the State 18 Agency. (AR at 313-17). Dr. Cash administered the Wechsler Adult 19 Intelligence Scale-III ( WAIS-III ). Plaintiff received a full scale IQ 20 of 67 and a verbal IQ of 67, which placed him in the extremely low range 21 at the 1st percentile. (AR at 315). Plaintiff s performance IQ of 74 was 22 in the borderline range at the 4th percentile. (AR at 315). Dr. Cash 23 diagnosed Plaintiff 24 disorder, history 25 intellectual functioning. (AR at 316). with of mood disorder, polysubstance NOS, history dependence, and of conduct borderline 26 Plaintiff argues that the ALJ failed to give proper consideration 27 to the findings of Dr. Pflaumer and Dr. Cash. (Joint Stipulation at 3-4, 28 6-8, 10); see Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (an 6 1 ALJ must provide clear and convincing reasons for rejecting the 2 uncontradicted opinion of an examining physician, and specific and 3 legitimate reasons supported by substantial evidence in the record to 4 reject the contradicted opinion of an examining physician). The Court 5 agrees with Plaintiff. Although the ALJ summarized Dr. Pflaumer s 6 opinion, 7 Pflaumer s findings that Plaintiff was mildly mentally retarded with IQ 8 scores ranging from 48 to 53. (AR at 11, 235-36). As for Dr. Cash s 9 opinion, the ALJ failed to even mention it in the decision. 10 The the ALJ failed Commissioner to argues state that any the reasons ALJ s for rejecting consideration of Dr. Dr. 11 Pflaumer s and Dr. Cash s opinions did not constitute reversible error. 12 First, the Commissioner asserts that the ALJ had no obligation to 13 explain why he rejected Dr. Pflaumer s opinion because it did not 14 pertain to the relevant period at issue in this case. (Joint Stipulation 15 at 4-5). The Commissioner correctly notes that Dr. Pflaumer examined 16 Plaintiff in September 2000, more than five years before Plaintiff filed 17 his application for SSI. See 20 C.F.R. §§ 416.335 (SSI benefits are not 18 retroactive prior to the month in which the application is filed), 19 416.501 (no payment of benefits prior to filing application). Although 20 Dr. Pflaumer s report predates Plaintiff s application, the ALJ was 21 still obligated to consider all relevant evidence in the record before 22 concluding that Plaintiff s impairments did not meet or equal a listed 23 impairment. See Lewis, 236 F.3d at 512. Dr. Pflaumer s report was 24 instructive in determining whether Plaintiff met the IQ requirements of 25 subparagraphs B and C, as well as the age requirement of Listing 12.05, 26 i.e., whether Plaintiff s significantly subaverage general intellectual 27 functioning with deficits in adaptive functioning initially manifested 28 during the developmental period or before age 22. 20 C.F.R. Part 404, 7 1 Subpt. P, App. 1 § 12.05. Thus, Dr. Pflaumer s opinion was significant 2 and probative on the issue of disability, and the ALJ was obligated to 3 explain why he was rejecting it. See Vincent v. Heckler, 739 F.2d 1393, 4 1395 (9th Cir. 1984) (holding that the ALJ must explain why significant 5 probative evidence has been rejected ). 6 The Commissioner concedes that the ALJ failed to discuss Dr. Cash s 7 opinion in the decision. The Commissioner argues, however, that Dr. 8 Cash s findings were consistent with the residual functional capacity 9 assessed by the ALJ, which included restrictions to simple, repetitive 10 tasks with limited public interaction. (Joint Stipulation at 8-10). 11 This argument is unavailing. Although the ALJ made findings as to 12 Plaintiff s level of functioning, he did not find that the IQ scores 13 identified by Dr. Cash were invalid. Because full scale and verbal IQ 14 scores were within the range at issue in Listing 12.05C, the ALJ s 15 silent rejection of Dr. Cash s opinion cannot be considered harmless. 16 (AR at 315); see 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.05; see 20 17 C.F.R. § 404.1520(a)(4)(iii) (If a claimant has impairments listed in 18 Appendix 1, the claimant is disabled without further inquiry as to 19 residual functional capacity and ability to past or other work). 20 Accordingly, the ALJ s decision denying benefits was not supported by 21 substantial evidence. 22 23 IV. Conclusion 24 In general, the choice whether to reverse and remand for further 25 administrative proceedings, or to reverse and simply award benefits, is 26 within the discretion of the court. See Harman v. Apfel, 211 F.3d 1172, 27 1178 (9th Cir. 2000) (holding that the district court s decision whether 28 to remand for further proceedings 8 or for payment of benefits is 1 discretionary and is subject to review for abuse of discretion). The 2 Ninth Circuit has observed that the decision whether to remand for 3 further proceedings turns upon the likely utility of such proceedings. 4 Id. at 1179; see Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) 5 (noting 6 appropriate if enhancement of the record would be useful ). In this 7 case, the ALJ s failure to provide any reasons for rejecting the 8 opinions of Dr. Pflaumer and Dr. Cash, and failure to even reference 9 Listing that 12.05 a remand leaves for it further unclear administrative whether the proceedings ALJ gave is proper 10 consideration to Plaintiff s impairment in intellectual functioning. 11 Therefore, the record is not fully developed and remand is warranted for 12 further consideration of Dr. Pflaumer s and Dr. Cash s opinions, and 13 clarification regarding the ALJ s step 3 determination.1 14 Accordingly, it is ordered that the decision of the Commissioner 15 be reversed and the matter be remanded for proceedings consistent with 16 this order. 17 DATED: February 1, 2010 18 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 1 Because the record is not sufficiently developed to support a determination of disability without further proceedings, the Court will not decide whether the remaining issues raised by Plaintiff would independently require reversal. See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate). The Court suggests, however, that all of Plaintiff s arguments be considered when determining the merits of his case on remand. 9
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